Keenan Sprague

The plaintiff brought a motion to amend the original title of proceedings in a statement of claim, issued in 2015 against "John Doe and Jane Doe" to reflect the correct name of the defendant driver, Melissa Gilmour.

The accident occurred in 2013, and the plaintiff's counsel failed to properly identify the defendant and issue the claim correctly within the limitation period.

The court considered the principles of misnomer under Rules 26.01 and 5.04(2) of the Rules of Civil Procedure, emphasizing the overarching goal of resolving cases on their merits.

Despite the plaintiff's counsel's negligence and significant delay, the court found that the proposed defendant's insurer had early notice of the accident and that the "litigating finger" pointed at the intended defendant.

The motion was granted, allowing the substitution of Melissa Gilmour for "Jane Doe." Costs of $2500 were awarded against the plaintiff's counsel's firm, not the plaintiff, due to their errors.

Aviva Insurance sought a declaration that Intact Insurance was obliged to defend Deejah Braithwaite and Lynda Williams in a motor vehicle accident action.

The core issue was the applicability and validity of an Excluded Driver Endorsement (OPCF 28A) signed by Deejah and Lynda.

The court found that Lynda Williams was aware Deejah remained an excluded driver and that the EDE applied to the vehicle involved in the accident, despite it being acquired after the EDE was signed.

The court also found substantial compliance with the Insurance Act regarding the EDE and that any non-compliance did not vitiate the contract.

The application was dismissed, and Intact Insurance was not obliged to defend.

The defendant restaurant brought a motion for summary judgment arguing that the plaintiffs' amended statement of claim advanced a new cause of action barred by the Limitations Act.

The plaintiffs had previously had their claim regarding a slip and fall on the restaurant's stairs struck, but were permitted to amend to plead a failure to advise of a main floor washroom.

The court found that while the amendment did not constitute a new cause of action, there was no genuine issue requiring a trial because the underlying complaint regarding the condition of the stairs had already been dismissed.

The motion for summary judgment was granted and the amended claim was dismissed.

The appellants challenged a motion judge's discretionary decision to extend the limitation period under section 38(3) of the Trustee Act and permit the respondents to add the appellants as named defendants in a medical malpractice action.

The Court of Appeal found no basis to interfere with the motion judge's decision, which was based on a finding of special circumstances.

Although there was a lengthy unexplained delay, the motion judge found it was outweighed by other factors, and there was no actual prejudice.

The appeal was dismissed.

The defendant radiologist moved for summary judgment dismissing the medical malpractice claim against him, arguing the plaintiffs failed to tender expert opinion evidence on causation.

The plaintiffs cross-moved for leave to admit late-served expert reports from a gastroenterologist and a radiologist.

The court granted the plaintiffs leave to admit the late reports, finding that their exclusion could cause a miscarriage of justice and the defendants would not suffer undue prejudice given the trial's adjournment.

Relying on the newly admitted expert evidence regarding standard of care and breach, the court dismissed the defendant's summary judgment motion, concluding that a genuine issue requiring a trial existed and that an inference of causation might be drawn at trial.

The issue of costs thrown away due to the trial's adjournment was reserved to the trial judge.

Following competing summary judgment motions in a civil commercial dispute, the court addressed the issue of costs.

The plaintiff’s summary judgment motion had previously been dismissed, while the defendant’s cross‑motion was found premature and allowed to be brought again after discoveries.

The plaintiff argued that the defendant should not receive costs because it withdrew one cross‑motion and the remaining motion was premature.

The court found that misleading and contradictory evidence advanced by the plaintiff undermined the litigation process and forced the defendant to bring the cross‑motions.

Considering the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs.